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West Virginia Law on Sexual Assault

The state of West Virginia is very specific about what constitutes sexual assault and sexual abuse. Thus below, you will find the various gradations as well as a list of vocabulary definitions, which will aid in the understanding of what act constitutes what crimes.

Sexual Assault Definitions

Sexual Assault in the First Degree
A person is guilty of sexual assault in the first degree when:

The offender engages in sexual intercourse or sexual intrusion without the consent of the victim and during the attack inflicts bodily injury or uses a deadly weapon.

The offender is 14 years old or more and engages in sexual intercourse or intrusion with another person, who is 11 years old or less.

Sexual Abuse in the Second Degree
A person is guilty of sexual abuse in the second degree when:

The offender engages in sexual intercourse or sexual intrusion without the victim’s consent by using forced participation.

The offender engages in sexual intercourse or sexual intrusion with another person who is physically helpless. This includes physically helpless victims, acquaintance rape, drug facilitated rape and victims who are intoxicated.

Sexual Assault in the Third Degree
A person is guilty of sexual assault in the third degree when:

The offender is 16 years old or more and engages in sexual intercourse or sexual intrusion with the victim who is less than 16 years old and who is at least 4 years younger than the offender. This also includes mentally handicapped and mentally incapacitated victims.

Sexual Abuse Definitions

Sexual Abuse in the First Degree
A person is guilty of sexual assault in the third degree when:

He/she engages in sexual contact without consent. Sexual contact means touching or fondling under and outside of clothing. This can be by force or with a physically helpless victim.This applies if the offender is 14 years or more and the victim is 11 years or less.

Sexual Abuse in the Second Degree
A person is guilty of sexual assault in the second degree when:

He/she engages in sexual contact when the victim is mentally handicapped or mentally incapacitated.

Sexual Abuse in the Third Degree
A person is guilty of sexual assault in the third degree when:

He/she engages in sexual contact when the victim is less than 16 years of age.

Sexual Assault of a Spouse
A person is guilty of sexual assault of a spouse when such person engages in sexual penetration or sexual intrusion with his or her spouse without the consent of the spouse; and

The lack of consent results from forcible compulsion; or

Such person inflicts serious bodily injury upon anyone; or

Such person employs a deadly weapon in the commission of the offense.

Sexual Abuse by Parent, Guardian or Custodian

This means sexual contact, sexual intrusion, sexual intercourse or sexual exploitation of a child under the care, custody or control of any parent, guardian, or custodian.

This means any parent, guardian, or custodian who knowingly procures another person to engage in or attempt to engage in sexual exploitation of, or sexual contact, sexual intrusion, or sexual intercourse with a child under the care, custody or control of such parent, guardian or custodian when such child is less than 16 years of age.

Incest

This means sexual intercourse or sexual intrusion between family members. Family members include a child of a spouse.

Helpful Vocabulary

Sexual Intercourse

Any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.

Sexual Intrusion

Any act between persons involving penetration, however slight, of the female sex organ or of the anus of either person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.

Forced Participation

Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or

Threats or intimidation, expressed or implied, placing a person in fear of immediate death or bodily physical injury to herself/himself or another person, or fear that she/he or another person will be kidnapped; or

Fear by a person under 16 years of age caused my intimidation, expressed or implied; by another person who is at least 4 years older than the victim.

Resistance includes physical resistance or any clear communication of the victim’s lack of consent.

Lack of Consent

Whether or not specifically stated, lack of consent is an element of every sexual assault. Lack of consent results from forced participation or the inability to consent. A person is considered incapable of consent when they are less than 16 years old, mentally handicapped, mentally incapacitated or physically helpless.

Forcible Fondling

The touching of the private body part of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of her/his youth or because of her/his temporary or permanent mental or physical incapacity.

Physically Helpless

A person is unconscious or for any reason is physically unable to communicate unwillingness to an act.

(Information in this section taken from West Virginia Foundation for Rape Information and Services,www.fris.org)